Ehlich v Minister of Justice and Correctional Services and Another (5590/2016) [2017] ZAECGHC 16 (17 January 2017)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO. 5590/2016

In the matter between:

BRUCE EHLICH

Applicant

and

MINISTER OF JUSTICE AND CORRECTIONAL SERVICES

First Respondent

CORRECTIONAL SUPERVISION AND

PAROLE BOARD (EAST LONDON)

Second Respondent

JUDGMENT

Bloem J.

[1] The applicant sought, on an urgent basis, an order reviewing and setting aside the second respondent’s decision allegedly taken on 28 November 2016 to deny him parole. The respondents oppose the application on the basis that it is not urgent and that the applicant has in any event not made out a case for the relief sought.

[2] The applicant is presently incarcerated at the Mdantsane correctional centre, having been convicted of indecent assault involving minor boys and sentenced to fifteen years’ imprisonment in 2003. The first respondent is the Minister of Justice and Correctional Services. The second respondent is the Correctional Supervision and Parole Board at East London (the Board), an entity appointed under section 74 of the Correctional Services Act.[1]

[3] The undisputed facts are that during January 2010 the applicant was placed on parole on certain conditions. One of the conditions was that he should not leave the magisterial district of East London without the approval of the Head of community corrections office at East London or the chairperson of the Supervision Committee at East London. Another condition was that, while on parole, the applicant should not use drugs or alcohol.

[4] On 19 April 2016 the applicant appeared before the Board following his arrest on the basis that he left the magisterial district of East London without the required permission. The Board cancelled his release on parole[2] because the applicant left the above district without the required permission. The applicant approached this court for an order that the Board’s decision to cancel his parole be reviewed and set aside. On 6 October 2016 Beshe J dismissed that application. In his founding affidavit the applicant stated that an “appeal against this judgment has been noted”.

[5] On Friday, 25 November 2016 the Case Management Committee at the Mdantsane correctional centre, established under section 42 of the Correctional Services Act, had a meeting with the applicant whereat his placement on parole was discussed. After that meeting the Case Management Committee submitted a report and its recommendations to the Board. On Monday, 28 November 2016 the Board held a hearing at which the applicant and his attorney were in attendance. Before the proceedings were adjourned on that day the Board’s chairperson stated that the applicant be “brought back to us not later than the 31st of January [2017] or any time before if the documents that are needed are accessed”.

[6] It is the applicant’s case that what is contained in the quotation in the preceding paragraph is a decision to deny him parole and that that decision is subject to review.

[7] This being an application for the review of an alleged administrative action, the first question to be asked and answered is: what is the administrative action that should be reviewed and set aside? If there is no administrative action, the application for review must fail.[3] The applicant contends that the administrative action is the second respondent’s decision, as he puts it, to deny him parole.

[8] In support of his contention that the above quotation amounts to a decision to deny him parole, the applicant relies on two documents. The first is a portion of the transcript of the hearing, more particularly what the Board’s chairperson had said before proceedings were adjourned on 28 November 2016 and the second is an extract from the minutes of the hearing on that day.

8.1. The transcript of the hearing on 28 November 2016 reflects that before the adjournment of proceedings on that day, the chairperson said the following:

“Okay, Bruce and Mr Mata and members of the Board. We have taken so long to deliberate over this and we have decided to give you another further profile for you to be brought back to us not later than the 31st of January or any time before if the documents that are needed are accessed. We still want to get the information that we

requested from N.. Unfortunately you are not N., but the 14 year old needs to be identified and N. is the one who has refused to give it. We had asked N. to come to the Board. He denied (sic) that.[4] So we need that information …”.

8.2. Paragraph 3.1 of the minutes of the hearing reveals that three of the four Board members were in favour of a further profile whereas the fourth member was of the view that the applicant should be placed on parole.

[9] In my view neither the transcript nor the minutes of the hearing on 28 November 2016 is proof that the Board took a decision not to place the applicant on parole. Those documents show that the only decision that the Board took on that day was to adjourn or postpone the parole proceedings to a date not later than 31 January 2017. The transcript and the affidavits filed of record show that there was a reason for the adjournment. The Board wanted certain documents, more particularly the birth certificates of A. and S., and wanted further investigations on certain aspects.

[10] When the Director of Public Prosecutions became aware that the applicant had been placed on parole, he addressed a letter dated 14 June 2010 to the Head of the community corrections office at East London wherein he pointed out that the modus operandi adopted by the applicant (when the offences of which he had been convicted were committed), was to have minor boys present at his

premises. The Director of Public Prosecutions furthermore stated that he had been informed that, after his placement on parole,

when the applicant was being visited at his flat “by members of the community corrections office, there were often minor boys present at the premises”. The Director of Public Prosecutions enquired whether it was a condition of the applicant’s placement on parole that he may not be in the company of boys under the age of 18 and, if not, whether such a condition could be added.

[11] In addition, the Board was in possession of an affidavit deposed to by Dieter Duwe on 6 June 2016. Mr Duwe is a private forensic investigator who plays social squash at the Cambridge sports club in East London. In his affidavit he alleged inter alia that up until 2015 when he was unaware of the applicant’s past, the latter “always surrounded himself with young black males (2 or 3 individuals at a time usually) and referred to them as his ‘sons’. I thought this plausible as many people adopt youngsters these days and so it did not seem strange to me at the time”. Mr Duwe furthermore alleged that he had seen the applicant with young black males at the Cambridge sports club, that he and his wife had seen the applicant entering a video shop in Vincent in the company of “about 5 black males, as young as about 10” and that he had seen the applicant consuming alcohol at a public bar.

[12] The Board was also in possession of an affidavit deposed to by Rudi van Dyk who is attached to the Family Violence Child Protection and Sexual Offences Unit of the South African Police Service. Warrant officer van Dyk explained what steps he took to get N. to cooperate with him regarding the establishment of S.’s age.

[13] The applicant alleged that he has “informally fostered children, N. (31), V. (21), and A. (18) as well as N.’s three children, S. (14), O. (6) and I. (1)”.

[14] The allegations made against the applicant by Mr Duwe are no doubt serious regard being had to the offences of which he was convicted and sentenced. The Board was aware of the seriousness of the allegations against the applicant and its responsibilities under the circumstances. For example, one Board member said to the applicant that “if there is any little indication that says you are in contact with children under the age without the supervision of their parents,

there is no way we can ignore that and leave it to just fade out. That is what we are doing exactly here, to get to the bottom of who are these children that you are in contact with.” From the transcript of the proceedings held on 28 November 2016 it appears that members of the Board want to investigate and establish at least whether or not there is evidence that the applicant was in A.’s presence (without an adult being present) before he turned 18 years of age and S.’ s identity. In the latter regard the applicant alleged that S. is N.’s child whereas in his affidavit warrant officer van Dyk alleges that N. informed him that he did not have children.

[15] A person who could be of assistance to the Board with the above investigation is N., to whom the applicant refers as his informal foster child and his caregiver. N. will be able to assist with the dates of birth of both A. and S., assuming the latter is his child. The transcript of the hearing and the affidavits filed of record speak of a N. who is reluctant, if not refusing, to be of assistance in this regard. Mr Mpahlwa, counsel for the respondents, cannot be faulted for describing N. as being uncooperative in the Board’s quest to establish whether the applicant is fit for placement on parole. In the circumstances, I am of the view that the applicant’s reliance on the transcript and minutes of the hearing on 28 November 2016 for his contention that the Board took a decision not to place him on parole is misplaced.

[16] Since there is no administrative action to be reviewed, the application must be dismissed.[5] In view of that finding, it is unnecessary to deal with the issue of whether or not application was urgent. There is no reason why the applicant should not pay the costs of the application, such costs to include the costs previously reserved.

[17] In the result, the application is dismissed with costs, such costs to include the costs previously reserved.

________________________

G H BLOEM

Judge of the High Court

For the applicant:

In person.

For the respondents:

Adv M Mpahlwa, instructed by the State Attorney, Port Elizabeth and Mgangatho Attorneys, Grahamstown.

Date heard:

12 January 2017.

Date of delivery of the judgment: 17 January 2017.

[1] Correctional Services Act, 1998 (Act No. 111 of 1998).

[2] Section 75 (6) of the Correctional Services Act permits the Board to cancel a sentenced offender’s parole.

[3] Gamevest (Pty) Ltd v Regional Land Claims Commissioner, Northern Province and Mpumalanga, and others 2003 (1) SA 373 (SCA) at 382B-C.

[4] In the context of what was being said, the chairperson probably meant that Nkosekhaya refused to attend the Board hearing.

[5] The Board did not take a decision to deny the applicant parole or, more correctly put, the Board did not take a decision not to place him on parole. Grounds of review other than those set out in the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000) (such as grounds of review based on legality) also do not apply to the facts of this case because the parole hearing has not been concluded and no decision has been taken not to place the applicant on parole.